(a) government procurement; or
(b) information held or processed by or on behalf of a Party, or measures related to that information, including measures related to its collection, except for Articles 8.7(6), 8.7(7), 8.7(8), and 8.13.
3. For greater certainty, a measure that affects the supply of a service delivered or performed electronically is subject to the relevant provisions of Chapter 17 (Investment), Chapter 18 (Cross-Border Trade in Services) and Chapter 20 (Financial Services).
4. Articles 8.10 and 8.11 shall not apply to the non-conforming aspects of measures adopted or maintained in accordance with Article 17.18 (Non-Conforming Measures), Article 18.7 (Reservations), or Article 20.10 (Non-Conforming Measures).
Article 8.3. Access to and Use of the Internet for Digital Trade
1. The Parties recognize that it is beneficial for consumers in their territories to be able to:
(a) access and use services and applications of a consumer's choice available on the Internet;
(b) connect end-user devices of a consumer's choice to the Internet, provided that such devices do not harm the network; and
(c) access information on the network management practices of a consumer's Internet access service supplier.
Article 8.4. Electronic Transactions
1. Except for circumstances provided for under its law, a Party shall not deny the legal validity of a transaction, including any document or contract related to the transaction, solely on the basis that it is in electronic form.
2. Each Party shall endeavour to avoid unnecessary regulatory burden on electronic transactions and facilitate input by interested persons in the development of its legal framework for electronic transactions.
Article 8.5. Electronic Authentication and Electronic Signatures
1. Except in circumstances provided for under its law, a Party shall not deny the legal validity of a signature solely on the basis that the signature is in electronic form.
2. A Party shall not adopt or maintain measures for electronic authentication and electronic signatures that would:
(a) prohibit parties to an electronic transaction from mutually determining the appropriate authentication methods or electronic signatures for that transaction; or
(b) prevent parties to an electronic transaction from having the opportunity to establish before judicial or administrative authorities that their transaction complies with a legal requirement with respect to authentication or electronic signatures.
3. Notwithstanding paragraph 2, a Party may require that, for a particular category of transactions, the method of authentication or electronic signature meets certain performance standards or is certified by an authority accredited in accordance with its law.
4. Each Party shall encourage the use of interoperable electronic authentication.
Article 8.6. Online Consumer Protection
1. The Parties recognize the importance of adopting and maintaining transparent and effective measures to protect consumers from fraudulent, misleading, or deceptive commercial activities when they engage in digital trade.
2. Each Party shall adopt or maintain consumer protection laws that address fraudulent, misleading or deceptive commercial activities that cause harm or potential harm to consumers engaged in online commercial activities.
3. The Parties recognize the importance of, and public interest in, cooperation between their respective national consumer protection authorities or other relevant bodies on activities related to cross-border digital trade, including the exchange of consumer complaints and other enforcement information as appropriate, in order to enhance consumer protection and their welfare.
Article 8.7. Personal Data Protection
1. The Parties recognize the economic and social benefits of protecting personal data of users of digital trade and the contribution that this makes to enhancing consumer confidence in digital trade.
2. To this end, each Party shall adopt or maintain a legal framework that provides for the protection of the personal data of the users of digital trade, taking into account the principles and guidelines of relevant international bodies. These principles include: limitation on collection; choice; data quality; purpose specification; use limitation; security safeguards; transparency; individual participation; and accountability.
3. Each Party shall endeavour to adopt or maintain non-discriminatory practices in protecting users of digital trade from personal data protection violations within its jurisdiction.
4. Each Party shall publish information on the personal data protections it provides to users of digital trade as part of its legal frameworks, including how:
(a) a natural person can access their own personal data;
(b) a natural person can pursue a remedy; and
(c) an enterprise can comply with legal requirements.
5. Recognizing that the Parties may take different legal approaches to protecting personal data, each Party should encourage the development of mechanisms to promote compatibility between these different regimes. The Parties shall endeavour to exchange information on the mechanisms applied in their jurisdictions and explore ways to extend these or other suitable arrangements to promote compatibility between them.
6. A Party shall not use the personal data of natural persons obtained from an enterprise operating within its jurisdiction in a manner that constitutes targeted discrimination on manifestly wrongful grounds such as race, colour, sex, sexual orientation, gender, language, religion, political or other opinion, national or social origin, property, medical, birth, or other status, genetic identity, age, ethnicity, or disability.
7. Each Party shall endeavour to ensure that any personal data disclosed to a government authority by an enterprise is protected against loss or theft, as well as unauthorized access, disclosure, copying, use, or modification.
8. Each Party shall ensure that any personal data disclosed to a government authority by an enterprise is not collected, created, accessed, disclosed, used, retained or modified by a government authority in a manner that can reasonably be expected to cause significant harm to a natural person.
9. The Parties acknowledge that their respective legal frameworks provide a suitable level of protection for personal information, including for personal information transferred between their jurisdictions. (1)
10. Unless a modification to the other Party's existing measures results in a materially lower standard of protection of personal information, a Party shall not adopt or maintain a measure for the protection of personal information that applies solely to cross-border transfers of personal information required for the conduct of business between the jurisdictions of the Parties, in a manner that modifies the conditions of competition to the detriment of service suppliers or enterprises of the other Party.
Article 8.8. Unsolicited Commercial Electronic Messages
1. Each Party shall adopt or maintain measures providing for the limitation of unsolicited commercial electronic messages.
2. Each Party shall adopt or maintain measures regarding unsolicited commercial electronic messages that:
(a) require suppliers of unsolicited commercial electronic messages to facilitate the ability of recipients to prevent the ongoing reception of those messages; or
(b) require the consent, as specified in the measures of each Party, of recipients to receive commercial electronic messages.
3. The Parties shall endeavour to cooperate in cases of mutual concern regarding the regulation of unsolicited commercial electronic messages.
Article 8.9. Prohibition of Customs Duties on Digital Products Transmitted Electronically
1. A Party shall not impose customs duties on a digital product transmitted electronically between a person of one Party and a person of another Party.
2. For greater certainty, paragraph 1 does not prevent a Party from imposing internal taxes, fees, or other charges on a digital product transmitted electronically, provided that those taxes, fees, or charges are imposed in a manner consistent with this Agreement.
Article 8.10. Cross-Border Transfer of Information by Electronic Means
1. A Party shall not restrict the cross-border transfer of information by electronic means, including personal data if such activity is for the conduct of the business of an enterprise.
2. This Article does not prevent a Party from adopting or maintaining a measure inconsistent with paragraph 1 that is necessary to achieve a legitimate public policy objective, provided that the measure is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.
3. Paragraph 1 does not apply to a financial institution of the other Party or a cross‑border financial service supplier of the other Party as defined in Chapter 20 (Financial Services).
Article 8.11. Location of Computing Facilities
1. A Party shall not require an enterprise to use or locate computing facilities in that Party's territory as a condition for conducting business in that territory.
2. This Article does not prevent a Party from adopting or maintaining a measure inconsistent with paragraph 1 that is necessary to achieve a legitimate public policy objective, provided that the measure is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade.
3. Paragraph 1 does not apply to a financial institution of the other Party or a cross‑border financial service supplier of the other Party as defined in Chapter 20 (Financial Services).
Article 8.12. Source Code
1. A Party shall not require the transfer of, or access to, source code of software owned by a person of another Party, or to an algorithm expressed in that source code, as a condition for the import, distribution, sale, or use of that software, or of products containing that software, in its territory.
2. This Article does not preclude a regulatory body or judicial authority of a Party from requiring a person of another Party to preserve and make available the source code of software, or an algorithm expressed in that source code, for a specific investigation, inspection, examination enforcement action, or judicial proceeding (2), subject to safeguards against unauthorized disclosure.
Article 8.13. Open Government Data
1. The Parties recognize the benefit of making data held by a regional or local government digitally available for public access and use in a manner consistent with paragraphs 2 to 4.
2. The Parties recognise that facilitating public access to and use of government data fosters economic and social development, competitiveness, and innovation. To this end, each Party shall endeavour to expand the coverage of such data, such as through engagement and consultation with interested stakeholders.
3. To the extent that a Party chooses to make government data digitally available for public access and use, each Party shall endeavour, to the extent practicable, to ensure that such data is:
(a) made available in a machine-readable and open format;
(b) searchable and retrievable;
(c) updated, as applicable, in a timely manner; and
(d) accompanied by metadata that is, to the extent possible, based on commonly used formats that allow the user to understand and utilise the data.
A Party shall further endeavour to make this data generally available at no or reasonable cost to the user.
4. To the extent that a Party chooses to make government data digitally available for public access and use, it shall endeavour to avoid imposing conditions (3) that unduly prevent or restrict the user of such data from:
(a) reproducing, redistributing, or republishing the data;
(b) regrouping the data; or
(c) using the data for commercial and non-commercial purposes, including in the process of production of a new product or service.
5. The Parties shall endeavour to cooperate in matters that facilitate and expand public access to and use of government data, including exchanging information and experiences on practices and policies, with a view to encouraging the development of digital trade and creating business opportunities, especially for small and medium-sized enterprises (SMEs).
Chapter 9. Competition Policy
Article 9.1. Objectives
1. The Parties recognize that anti-competitive business conduct and transactions may distort the proper functioning of markets and offset the benefits of trade liberalization.
2. The Parties shall endeavour to take appropriate measures to proscribe anti‑competitive business conduct and transactions, to implement policies promoting competition, and to cooperate on matters covered by this Chapter to help secure the benefits of this Agreement.
3. The Parties agree that anti-competitive business conduct and transactions outlined in their competition laws, including abuse of a dominant position, are incompatible with this Agreement, insofar as they may affect trade and investment between the Parties.
Article 9.2. Competition Laws and Authorities
1. Each Party shall maintain competition laws that proscribe anti-competitive business conduct and transactions, with the objective of promoting economic efficiency and consumer-welfare, and shall take appropriate action with respect to anti-competitive business conduct and transactions.
2. Each Party shall endeavour to apply its competition laws to all commercial activities in its territory. This does not prevent a Party from applying its competition laws to a commercial activity outside its territory that has an appropriate nexus to its jurisdiction.
3. Each Party may provide for an exemption from the application of its competition laws provided that the exemption is transparent, established in its law, and based on legitimate public policy objectives.
4. Each Party shall maintain an authority responsible for the enforcement of its competition laws ("competition authority").
5. Each Party shall ensure and maintain independence in decision-making by its competition authority or in relation to the enforcement of its competition laws.
6. Each Party shall ensure that its competition authority enforces its competition laws in accordance with the objectives set out in Article 9.1, and does not discriminate on the basis of nationality.
Article 9.3. Procedural Fairness
1. For the purposes of this Chapter, "enforcement proceeding" means a judicial or administrative proceeding following an investigation into the alleged contravention of a Party's competition laws. (1)
2. Each Party shall ensure that, before it imposes a final sanction or remedy against a person for contravening its competition laws, it affords that person a reasonable opportunity, in accordance with its law, to have non-privileged information about the competition authority's reason for investigation, including identification of the specific competition laws alleged to have been contravened.
3. Each Party shall, in accordance with its law, provide a person subject to a contested enforcement proceeding with reasonable access to non-privileged information that is necessary to prepare an adequate defence.
4. Each Party shall, in accordance with its law, provide a person subject to a contested enforcement proceeding with a reasonable opportunity to be heard and to present, respond to, and challenge evidence.
5. Each Party shall, in accordance with its law, provide a person with a reasonable opportunity to contest an allegation that the person has contravened competition laws before an independent and impartial judicial or administrative body, including the review of an alleged substantive or procedural error.
6. Each Party shall ensure that its competition authority affords a person a reasonable opportunity to be represented by legal counsel.
7. Each Party shall ensure that its competition authority recognizes a privilege, as acknowledged by its law, if not waived, for lawful communications between the counsel and the person if the communications concern the soliciting or rendering of legal advice.
8. Each Party shall endeavor to conclude its investigations and aspects of enforcement proceedings under its control within a reasonable time period, taking into account the nature and complexity of the case.
9. Each Party shall adopt or maintain rules of procedure and evidence for conducting its enforcement proceedings and determining sanctions and remedies under these proceedings.
10. Each Party shall, in accordance with its law, provide for the protection of confidential information obtained by its competition authority during the investigation.
11. Each Party shall, if appropriate and legally permissible, ensure that its competition authority informs a person that is the subject of an investigation as soon as practicable. This information must include the legal basis for the investigation and the alleged conduct or transaction under investigation. In determining the timing for informing a person of an investigation, a Party's competition authority may consider the status and specific needs of the investigation, such as the need to keep the investigation covert or to take immediate action to mitigate further harm.
12. Each Party shall endeavour to, if appropriate and legally permissible, provide a person subject to an investigation that has been informed of the investigation, or that has notified a merger or other transaction or conduct, with a reasonable opportunity for meaningful and timely engagement on the relevant factual, legal, economic, and procedural issues, according to the status and specific needs of the investigation.
Article 9.4. Transparency
1. The Parties recognize the value of making their competition enforcement guidelines and advocacy policies as transparent as possible.
2. Each Party shall ensure that its competition laws are publicly available.
3. For greater certainty, this Article does not require a Party to disclose confidential information, privileged information, or information otherwise protected on the grounds of legitimate public policy objectives, including a Party's competition authority's internal operating procedures.
4. On request of a Party, the other Party shall make available to the requesting Party public information concerning:
(a) its competition law enforcement guidelines and practices; and
(b) exemptions to its competition laws.
5. Each Party shall ensure that a final decision from an enforcement proceeding finding a contravention of its competition laws sets out findings of fact and the reasoning (2), including legal and, if applicable, economic analysis, on which the decision is based.
6. Each Party shall ensure that a final decision referred to in paragraph 5 and any order implementing that decision are published, or if publication is not practicable, are made publicly available in a manner that enables an interested person or the other Party to become acquainted with them.
7. Each Party shall ensure that a decision or an order that is published or made publicly available is redacted to the extent necessary to be consistent with that Party's law regarding confidentiality, privilege, and any other applicable exceptions, including the need to safeguard information on the grounds of legitimate public policy objectives.
Article 9.5. Confidentiality
1. Each Party shall have publicly available rules, policies, or guidance regarding the identification and treatment of confidential information that comes into the possession of the competition authority.
2. Each Party shall ensure that its competition authority, to the fullest extent possible, limits access to confidential information protected under its Party's laws, and, where the public seeks to obtain access to confidential information in the possession of the competition authority, the competition authority shall generally oppose such a request.
Article 9.6. Cooperation
1. The Parties recognize that anti-competitive business conduct and transactions increasingly transcend borders, and that cooperation and coordination between the Parties to foster effective competition law enforcement is important and in the public interest.
2. Each Party's competition authority shall endeavour to cooperate:
(a) in any area of competition policy by exchanging information on the development of competition policy; and
(b) on any issue of competition law enforcement, including the exchange of information, investigative and enforcement assistance, and consultation and coordination on any cross-border investigation.
3. A Party's competition authority may consider entering into a cooperation arrangement or agreement with the competition authority of another Party that sets out decided terms of cooperation.
4. Recognizing that the Parties can benefit by sharing their diverse experience in developing, administering, and enforcing their competition laws and policies, the Parties may undertake technical cooperation activities, including:
(a) providing advice or training on any relevant issue, including through the exchange of officials;
(b) exchanging information and experience on competition advocacy, including ways to promote a culture of competition; and
(c) assisting a Party as it implements a new competition law.
5. The Parties shall cooperate under this Article in a manner compatible with their respective laws, policies, and mutual interests, and within their reasonably available resources. Information shared pursuant to this Article may be subject to additional requirements, including confidentiality requirements or restrictions on the purposes for which the information is used.
Article 9.7. Consultations
1. In order to foster understanding between the Parties, or to address a specific matter that arises under this Chapter, on written request of the other Party, a Party shall enter into consultations with the requesting Party. The requesting Party shall indicate, if relevant, how the matter affects trade or investment between the Parties.
2. The responding Party addressed shall accord full and sympathetic consideration to the concerns of the requesting Party.
3. To facilitate the discussion regarding the matter of consultations, each Party shall endeavour to provide relevant non-confidential, non-privileged information to the other Party.
Article 9.8. Non-Application of Dispute Settlement
A Party shall not have recourse to dispute settlement under Chapter 28 (Dispute Settlement) for a matter arising under this Chapter.
Chapter 10. Designated Monopolies and State-Owned Enterprises
Article 10.1. Definitions
For the purposes of this Chapter:
Arrangement means the Arrangement on Officially Supported Export Credits, developed within the framework of the Organization for Economic Co-operation and Development ("OECD"), or a successor undertaking, whether developed within or outside of the OECD framework, that has been adopted by at least 12 original WTO Members that were Participants to the Arrangement as of 1 January 1979;
commercial activities means activities that an enterprise undertakes with an orientation toward profit-making and that result in the production of a good or supply of a service that will be sold to a consumer in the relevant market in quantities and at prices determined by the enterprise. Activities undertaken by an enterprise that operates on a not-for-profit basis or on a cost-recovery basis are not activities undertaken with an orientation toward profit-making. Measures of general application to the relevant market shall not be construed as the determination by a Party of pricing, production, or supply decisions of an enterprise;
designate means a decision by a Party to establish, name, or authorize a monopoly, or expand the scope of a monopoly to cover an additional good or service;
designated monopoly means a privately owned monopoly that is designated after the date of entry into force of this Agreement or a government monopoly that a Party designates or has designated;
government monopoly means a monopoly owned, or controlled through ownership interests, by the national government of a Party or by another government monopoly;
in accordance with commercial considerations means consistent with normal business practices of a privately held enterprise in the relevant business sector or industry;
independent pension fund means an enterprise that is owned, or controlled through ownership interests, by a Party that:
(a) is engaged exclusively in the following activities:
(i) administering or providing a plan for pension, retirement, social security, disability, death or employee benefits, or any combination thereof solely for the benefit of natural persons who are contributors to such a plan and their beneficiaries; or
(ii) investing the assets of these plans;
(b) has a fiduciary duty to the natural persons referred to in subparagraph (a)(i); and
(c) is not subject to investment direction from the government of the Party. Investment direction from the government of a Party does not include general guidance with respect to risk management and asset allocation that is not inconsistent with usual investment practice and is not demonstrated solely by the presence of government officials on the enterprise's board of directors or investment panel;
Market means the geographic or commercial market for a good or service;
Monopoly means an entity, designated by a Party, including a consortium or government agency, that in any relevant market in the territory of a Party is the sole provider or purchaser of a good or service, but does not include an entity that has been granted an exclusive intellectual property right solely by reason of that grant;
sovereign wealth fund means an enterprise owned, or controlled through ownership interests, by a Party that:
(a) serves solely as a special purpose investment fund or arrangement for asset management, investment, or related activities, using financial assets of a Party. The Parties understand that the word "arrangement" herein as an alternative to "fund" allows for a flexible interpretation of the legal arrangement through which the assets can be invested; and